Maintenance for life?

Section 23 (1)(a) of the Matrimonial Causes Act 1973 (MCA 1973) gives the court the power to order periodical payments. Recent decisions of the High Court and Court of Appeal have focused on such orders, considering whether spousal maintenance orders should be made, for how much, and for how long.

In SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) Mostyn J considered the correct approach to periodical payments orders. He found that (save in a wholly exceptional case) maintenance orders can only be made to meet needs. MCA 1973, ss 25A(1)-(2) stipulate that spousal maintenance should be terminated as soon as is ‘just and reasonable’. A maintenance term should be considered unless the payee would be ‘unable to adjust without undue hardship’ to the ending of the payments. This suggests that parliament accepts ‘a degree of not undue hardship’ in making the adjustment. Unless undue hardship would likely be experienced the court ought to provide an end date to a maintenance order.

Assuming that there are ‘hard needs’ which have to be met by a spousal maintenance order, in SS v NS Mostyn J considered the questions: how much? and for how long?

How much?

Mostyn J approved of view in the Law Commission report Matrimonial Property, Needs and Agreements (Law Com No 343, 26 February 2014) that: ‘…the transition to independence, if possible, may mean that one party is not entitled to live for the rest of the parties’ joint lifetimes at the marital standard of living, unless he or she can afford to do so from his or her own resources’, remarking that it is a mistake to regard the marital standard of living as the lodestar, because:

  • as time passes how the parties lived in the marriage becomes increasingly irrelevant, and
  • too much emphasis on it imperils the prospects of eventual independence

How long?

Mostyn J found that the Holy Grail should be ‘where it is just and reasonable, an eventual termination and clean break’. He noted (it seems with approval) the Law Commission’s conclusion that:

‘…the objective of financial orders made to meet needs should be to enable a transition to independence, to the extent that that is possible in light of the choices made within the marriage, the length of the marriage, the marital standard of living, the parties’ expectation of a home, and the continued shared responsibilities (importantly, childcare) in the future. We acknowledge the fact that in a significant number of cases independence is not possible, usually because of age, but sometimes for other reasons arising from choices made during the marriage.’

He also considered the proper approach to the discharge and extension of periodical payments, holding that the same approach to making an order for the first time should be followed. On an application to extend a term an examination would have to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve. On a discharge application an examination would have to be made of the assumption that it was just too difficult to predict eventual independence.

Key factors

Mostyn J set out 11 factors to be applied when considering spousal maintenance:

  • a spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant
  • an award should only be made by reference to needs, save in a most exceptional case where it can be said that the sharing or compensation principle applies
  • where the needs in question are not causally connected to the marriage the award should generally be aimed at alleviating significant hardship
  • in every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable—a term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments, and a degree of (not undue) hardship in making the transition to independence is acceptable
  • if the choice between an extendable term and a joint lives order is finely balanced then the statutory steer should militate in favour of the former
  • the marital standard of living is relevant to the quantum of spousal maintenance but is not decisive—that standard should be carefully weighed against the desired objective of eventual independence
  • the essential task of the judge is not merely to examine the individual items in the claimant’s income budget but also to stand back and to look at the global total and to ask if it represents a fair proportion of the respondent’s available income that should go to the support of the claimant
  • where the respondent’s income comprises a base salary and a discretionary bonus, the claimant’s award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus on a capped percentage basis
  • there is no criterion of exceptionality on an application to extend a term order—on such an application an examination should to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve and, if so, why
  • on an application to discharge a joint lives order an examination should be made of the original assumption that it was just too difficult to predict eventual independence, and
  • if the choice between an extendable and a non-extendable term is finely balanced the decision should normally be in favour of the economically weaker party

Limited support

Recently, the Court of Appeal in Wright v Wright [2015] EWCA Civ 201 refused an application for permission to appeal by the former wife of a millionaire racehorse surgeon, who was told by a Family Court judge that she has no right ‘to be supported for life’ following her divorce. In that case, having divorced in 2008 following an 11-year marriage, the husband was ordered to pay £33,200 maintenance per year in maintenance in addition to school fees for the couples’ two children (total £75,000), with the proceeds from the sale of their £1.3m home being divided equally.

The husband objected to indefinite payments, effective even after his retirement. He applied to have them reduced. He said that the wife had made ‘no effort whatsoever to seek work’, so he should not be expected to continue paying her so much. The judge hearing the application agreed that the spousal maintenance should eventually stop, ordering that the amount the wife receives should be gradually reduced in the years leading up to her ex-husband’s retirement. The judge said that ‘a working mother at this stage of [the children’s] lives may well provide them with a good role model.’

The application for permission to appeal was dismissed by Pitchford LJ, who told the wife that it was ‘imperative’ that she find a job, just like ‘vast numbers of other women with children’. This case received a lot of publicity, and will surely stimulate many applications to vary or terminate existing maintenance orders. On such applications, the approach by Mostyn J in SS v NS will now guide the court to its decision.

Deborah Dinan-Hayward is a barrister and head of Albion Chambers’ family team. This blog post was first published in the May issue of Albion Chambers family newsletter. 

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Relevant Articles
Area of Interest